Vindication rather than condemnation

Follow-up reports on Goldstone findings contain much more in the way of what’s positive about Israel’s legal processes than what isn’t.

By DAVID BENJAMIN
Explosion in Gaza City (photo credit: Reuters)
Explosion in Gaza City
(photo credit: Reuters)
In last week’s session, the UN Human Rights Council adopted yet another slew of Israel-bashing resolutions, one of which urges that the UN Security Council refer the “situation in the Occupied Territories” to the International Criminal Court. This comes after the second of two “Committees of Experts” appointed by the UNHRC submitted its report on Israel’s and the Palestinians’ investigations into allegations of war crimes and crimes against humanity contained in the UNHRC’s Fact Finding Mission Report (the Goldstone Report). What was predictably overlooked in the Council’s rush to denigrate Israel was the fact that in substantive (rather than quantitative) terms, the reports compiled by the Committees contain much more in the way of vindication of Israel’s legal processes than criticism.
First, the reports accept that, in principle, it is legitimate that allegations of misconduct of military personnel are investigated by military authorities. This runs counter to the popular claim that the military is incapable of investigating itself.
Second, the reports acknowledge that there are built-in structural guarantees to ensure the professional independence of the IDF’s Military Advocate General’s Corps.
On top of this, the fact that both the attorneygeneral and the Supreme Court exercise civilian oversight of the military legal apparatus and that any interested party can petition the Supreme Court to overturn a decision of the military authorities is described as “a commendable mechanism to protect against arbitrariness”.
The reports also make mention of the “commendable practice” whereby Palestinians can file claims for compensation in Israel.
MOREOVER, THE reports acknowledge that Israel “has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza. Given the scale of this undertaking, it is unsurprising that in 2011 much remains to be accomplished.”
Of particular note is the fact that the second Committee’s report views the mechanism of the Turkel Commission as an appropriate framework to investigate questions of policy and the actions of high-level decision makers. Here it should be recalled that not only did the Turkel Commission vindicate the actions of the IDF in the Gaza flotilla affair, but the same body is currently examining whether Israel’s system of investigating violations of international law by its own personnel conforms to international standards. This can be taken to mean that, in the Committee’s view, the findings of the Turkel Commission on this matter should carry considerable weight for those entrusted with determining whether Israel has adequately investigated allegations made in the Goldstone Report.
It should be noted that the report’s conclusions were reached in the absence of cooperation by Israeli authorities, a fact lamented by the Committees, which relied on NGOs and materials available in the public domain.
Of course, the reports also contain criticism of the Israeli investigation process. However, the primary criticism hinges on a point which the Committees themselves concede to be debatable.
They make much weather of the fact that the military advocate general fulfills the dual function of both chief legal adviser to the IDF as well as chief prosecuting authority. They argue that this might impact on his impartiality, but at the same time concede that this “does not automatically lead to a conflict of interests or lack of impartiality”.
The Committees also see a major shortcoming in that Israel has not appointed an independent body, such as the Turkel Commission, to investigate the actions of those who “designed, planned, ordered and oversaw” Operation Cast Lead. Of course, this would be necessary if one seriously believed the outrageous accusation (à la Richard Goldstone) that Israel had a policy of systematically and deliberately attacking the civilian population and infrastructure.
While the reports also devote an inordinate amount of their text to nitpicking at the minutia of individual Israeli investigations, this has the effect of reinforcing the serious and sophisticated nature of the Israeli efforts. Furthermore, the juxtaposition of the Committees’ treatment of Israeli investigations along with its treatment of the “investigations” being conducted by those who are termed “the de-facto rulers of Gaza” – where there is clearly nothing to nitpick at – only serves to highlight the absence of any intention by Hamas to address the deliberate and indiscriminate launching of missiles at Israeli civilians. Notably, the second report also places a focus on the lack of redress for the Israeli victims of the conflict.
In short, the big picture that emerges from the reports is of a sophisticated, independent and concerted investigation process on the Israeli side. Fair-minded people would have difficulty squaring this picture with the vindictive demand to haul Israelis before the International Criminal Court. Regrettably, when it comes to Israel, fairness has never been the strong suit of the Human Rights Council.
The writer is an international law consultant and a former senior legal adviser to the IDF.